Electronic Journal of Human Sexuality, Volume 14, Feb. 15, 2011

Obscenity Trial Tarnishes America

Marty Klein, PhD

Note: this was written August 18, 2008. It’s being posted now because it might as well have been written yesterday. Or, for that matter, next week.

Last week I traveled 14 hours to Staunton, Virginia to testify in an obscenity trial. A guy was accused of selling DVDs in his shop that showed adults having sex with each other—which, of course, he had.

Staunton is the kind of small town in which locals enjoy being helpful to strangers. In fact, when I pulled into a gas station needing directions, the mechanic fixing a flat asked me where I was from, shook my hand, and introduced himself, welcoming me to the beautiful Shenandoah Valley.

But I couldn’t have coffee with the guy. I was in Staunton to defend the Constitution from his neighbors. Maybe even from him.

I am desperate for you to understand this: an American city, in the year 2008, asked a jury of seven men and women to declare that a movie of adults having sex could be illegal. City prosecutor Ray Robertson said that some movies—these movies, for sure—could be so dangerous that they fall outside the protection of our glorious First Amendment.

What could these films contain that make them so treacherous? If the film called for organized revolution, it would be legal. If the film said that Blacks were lazy, Jews were cheap, or Catholics were disloyal Pope-lovers, it would be legal. If the film said our two-party system was corrupt, and that censorship laws were destroying democracy, it would be legal.

The indicted films didn’t say any of these things. But the government said these films were so dangerous that adults must be prevented from buying them.

In the U.S.. In 2008. Films that simply showed adults having sex: no kids, no animals. Not even a pretend rape. Just a few hours of boobs, boners, and butts, waxed vulvas, and a few pints of ejaculate (much of it on women’s faces or chests). And hours of smiles.

To a casual observer, the bust looked simple enough: a small-town cop buys a DVD, gives it to the DA, who convenes a grand jury, which issues an indictment, and a small-time businessman gets hauled into court. Soon after, he’s dragged into prison.

That would be bad enough. Remember, this is America.

But something more sinister was afoot: the federal Department Of Justice was involved in this. Attorney Matthew Buzzelli, part of the DOJ’s medieval Obscenity Prosecution Task Force, was serving as co-prosecutor, even though there were no federal indictments. Prosecuting a tiny shop in tiny Staunton is part of a bigger plan to attack smut across the country. “They’re interested in how we do here,” said local prosecutor Robertson.

Now let’s roll in the irony.

Staunton , Virginia is just a few miles from Monticello, home of Thomas Jefferson— author of the Declaration Of Independence. And it’s only a few miles from Montpelier, the home of James Madison—who wrote the Constitution.

Staunton itself, in fact, is the birthplace of Woodrow Wilson, who guided the U.S. into and out of World War I. His presidential library is on North Coalter Street, two blocks from the courthouse. James Monroe’s estate is less than an hour away. Founded over three centuries ago, Staunton is thick with the perfume of history. The history of freedom.

The trial to decide whether or not one adult can sell a movie to another adult of other adults having sex was taking place in the shadow of Jefferson and Madison. If anyone noticed the depressing irony of this, they didn’t mention it.

The government claimed the movies should be criminalized because:

* they depict sick behavior

* they appeal to sick people

* watching movies like this makes people masturbate, makes them watch more movies, rape women, and molest children

* criminalizing the movies is part of protecting American society from moral depravity

The first three points are demonstrably not true. The government couldn’t prove any of them, so they just asserted them, over and over.

The fourth claim is merely overheated rhetoric, a judgment about personal morality that any American is free to make. The idea that anyone could enforce that judgment on another American, however, is repulsive.

And yet that’s what the government did—it lied repeatedly about the first three claims, and asserted the jury’s responsibility to pursue the fourth.

In fact, the government used the slimiest tactic imaginable. Although every actress in Sugar Britches had proven she was over 18, the government said one looked much younger (small breasts, shaved bush, etc.). Therefore the film appealed to pedophiles, it encouraged them to molest children, and was thus so dangerous it had to be banned.

Judge Thomas Wood had already warned the prosecution not to make this a trial about child pornography. He became so angry at their continued references to children that he threatened the government with a mistrial if it continued.

Without this inflammatory strategy, the government had nothing of substance to say. Its “expert,” sexual trauma specialist Dr. Mary Anne Layden (porn is the "most concerning thing to psychological health that I know of today;" porn addicts have “more trouble recovering from their addiction than cocaine addicts”), had no peer-reviewed studies, no non-clinical samples.

Similarly, federal attorney Buzzelli claimed the films were designed to appeal “to an unhealthy interest in sex.” Thus, the case wasn’t simply about “to each his own.”

Prosecutor Robertson said “You’ve never seen anything immoral in Staunton until this store came here,” “It was wrong for this community, obscene for this community.” He urged the jury to exile the store and its products: to “where they allow it … where they don’t care about the morality or the decency of their community…don’t turn Staunton into Las Vegas.”

From small town prosecutor to the mighty feds, that was the case: these films are immoral, and so should be illegal. Immoral. If it’s “immoral,” it just shouldn’t be allowed.

To decide if the movies were dangerous, the jurors had to watch the movies. In broad daylight, fully clothed, sitting next to strangers, right after breakfast, they had to watch three hours of porn. Some of them had never watched porn in their lives, and had assumed, quite reasonably, that they would die some day without ever doing so.

Naturally, those men and women hated the experience the government put them through. Think about how you’d feel being forced to listen to hours of Barbra Streisand, Kiss, Beethoven, Bill O’Reilly, or whatever sounds to you like fingernails on a blackboard. Then multiply this by a thousand. That’s what it must have been like for those jurors.

After that, they’re supposed to imagine a normal person watching one of these films for a few minutes, getting excited, and happily climaxing--and then going back to a normal life, normal marriage, normal job, normal parenting.

Jury members were the ONLY ones on Earth forced to watch the films. Then they were supposed to decide if their neighbors could be allowed to watch them voluntarily. How completely mixed up is that?

In the end, the clerk who sold the films to the cop was acquitted. The guy who owns the store was convicted of selling obscene material to a consenting adult. He will be punished. He has already spent tens of thousands of dollars defending himself. He has been dragged into court, branded a danger to his neighbors and their children, and threatened with spending month after terrifying month in jail.

The people on the jury will go home to their lives. They’ll have a story to tell their friends. They’ll have watched porn when they otherwise wouldn’t. Or they’ll have watched familiar porn in a very non-familiar situation.

But these seven people decided that there’s a movie so dangerous it challenges the entire basis of American democracy. It is so dangerous, it must be wiped out from the community. It must be kept away from adults, who are allowed to drive, to vote, to own guns, to raise children, to do surgery, and to serve in the Army.

The movie is that dangerous, said the jury.

So people of Staunton, don’t shake my hand, don’t welcome me to your pretty little town, don’t be so damn friendly. I hate what you did to my country last week. You spurned Jefferson, denied Madison, spit on the America you claim you love.

After the trial I walked down Market Street, back to the Stonewall Jackson Hotel. Bumper stickers exhorted me to Support Our Troops. To Bring Democracy To Iraq.

I packed my things and drove to Monticello as I’d planned. But I had trouble enjoying the tour of the place where Jefferson dreamt up America. My heart just wasn’t in it.